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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. City of Kenai v. Friends of the Recreation Center, Inc. (02/17/2006) sp-5989

City of Kenai v. Friends of the Recreation Center, Inc. (02/17/2006) sp-5989, 129 P3d 452

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


CITY OF KENAI, an Alaska )
municipal corporation, ) Supreme Court No. S-11506
)
Appellant, ) Superior Court No. 3KN-03-503 CI
)
v. ) O P I N I O N
)
FRIENDS OF THE RECREATION ) [No. 5989 - February 17, 2006]
CENTER, INC., an Alaska corporation,)
MARK NECESSARY, ANITA )
NECESSARY, and CLIFFORD D. )
MASSIE, Individually, )
)
Appellees. )
)

          Appeal  from the Superior Court of the  State
          of  Alaska,  Third Judicial District,  Kenai,
          Harold M. Brown, Judge.

          Appearances:  Cary R. Graves, City  Attorney,
          Kenai, for Appellant.  John E. Havelock, John
          E.  Havelock Attorney at Law, Anchorage,  for
          Appellees.

          Before:    Bryner,  Chief Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          EASTAUGH, Justice.

I.   INTRODUCTION
          Was it error to award full reasonable attorneys fees to
public  interest  litigants who sued the  City  of  Kenai?   They
claimed  that awarding a contract to manage the citys  recreation
center without competitive bidding violated the citys code.   The
superior  court  entered a preliminary injunction preventing  the
city  from  using  public  funds to pay the  manager,  but  later
dismissed  the suit as moot after the city amended the  pertinent
ordinance and recontracted with the manager.  Because it was  not
an  abuse  of discretion to enter the preliminary injunction,  we
conclude  that  the  court  did  not  err  in  finding  that  the
plaintiffs  were the prevailing parties.  We also  conclude  that
the  dismissal for mootness did not deprive them of that  status,
and  that  the  superior court was not obliged to  apportion  the
attorneys fees award.
II.  FACTS AND PROCEEDINGS
          In  early 2003 the City of Kenai was examining  options
for adjusting its budget; the options included budget cuts.  City
employees had operated the citys Kenai Recreation Center since it
opened  in the 1980s, but it appeared that the city could realize
net savings of $110,000 by contracting for private management  of
the  center.  The city therefore solicited from the Boys &  Girls
Club  of  the  Kenai  Peninsula  (the  club)  a  proposal  for  a
Partnering  Agreement,  a contract under  which  the  club  would
manage the center.  The city did not solicit competitive bids for
the  proposed contract, and the city manager discouraged  another
interested private party from bidding.
          Over  the  next  several  months  the  Kenai  Parks   &
Recreation  Advisory Commission  which makes  recommendations  to
the  city  council regarding parks and recreation  facilities  in
Kenai  and the city council met to discuss a partnering agreement
with  the  club.  The city council approved a contract  with  the
club on May 21, 2003.  Friends of the Recreation Center, Inc. and
three  individuals, Mark and Anita Necessary and Clifford Massie,
(collectively, Friends) sued the city on June 26,  contending  in
part that the city had not conducted competitive bidding for  the
contract  as  required  by city ordinance.1   Friends  asked  the
superior   court  for  a  temporary  restraining  order   and   a
preliminary  injunction  preventing the city  from  honoring  its
contract  with  the  club.  Friends also  asked  for  a  judgment
declaring  that  the contract was void for, among other  reasons,
violating the competitive bidding requirement of KMC 7.15.040.2
          The  club  began operating the center on July 1,  2003.
On July 10 the superior court rejected the citys contention that,
because KMC 7.15.050(5) as it then read exempted a service  of  a
professional  nature, the contract was exempt from KMC  7.15.040s
competitive  bidding  requirement.   The  court  then  issued   a
preliminary injunction preventing the city from paying  the  club
under the contract.3
          On  September  3,  2003 the city  council  amended  KMC
7.15.050(5)   to  exempt  contracts  for  facilities   management
services  from  KMC  7.15.040s competitive bidding  requirement.4
The  city  then  solicited  bids for private  management  of  the
center,  assigned the clubs bid the highest score,  and  replaced
          the clubs first contract with a second contract.
          On  May  7, 2004 the superior court granted the parties
joint  motion to dismiss Friendss suit as moot.  Then,  over  the
citys  objection,  it found that Friends was  a  public  interest
litigant  and the prevailing party, and awarded Friends its  full
reasonable attorneys fees.
          The city appeals.
III. DISCUSSION
     A.   Standard of Review
          We  review for abuse of discretion the superior  courts
determination of prevailing party status for purposes of awarding
attorneys  fees.5   We  also review the issuance  of  preliminary
injunctions for abuse of discretion.6  We will find an  abuse  of
discretion  only  when  we  are left with  a  definite  and  firm
conviction,  after  reviewing the whole record,  that  the  trial
court  erred in its ruling. 7  But we review de novo the superior
courts   legal   determinations  in   issuing   the   preliminary
injunction.8   We will approve the apportionment of a  prevailing
public   interest  litigants  attorneys  fees   award   only   in
exceptional circumstances.9
     B.    Friends Is Entitled to Full Reasonable Attorneys  Fees
as a Prevailing          Party Public Interest Litigant.

          Under  Alaska law, the prevailing party is the one  who
successfully  prosecuted or defended the action and prevailed  on
the  main  issue.10  The prevailing party in civil litigation  is
normally entitled to recover partial attorneys fees under  Alaska
Civil  Rule 82.  But if the prevailing party is a public interest
litigant,  it  is normally entitled to full reasonable  attorneys
fees.11  Because the city does not argue on appeal that Friends is
not  a  public  interest litigant, Friends is  entitled  to  full
reasonable  attorneys fees if the superior court did not  err  in
finding it to be the prevailing party.
          After   the   superior  court  issued  the  preliminary
injunction,  the  city  rendered the merits  of  the  competitive
bidding  dispute  moot  by  amending KMC  7.15.050(5)  to  exempt
facilities  management  from  KMC 7.15.040s  competitive  bidding
requirement  and by entering into a new contract with  the  club.
We  will  decide the merits of otherwise-moot cases in  order  to
determine  the  prevailing party for purposes  of  attorneys  fee
awards.12   We  therefore focus on whether  Friends  successfully
prosecuted the case and prevailed on the main issue in  obtaining
the  preliminary injunction; this requires us to consider whether
the   superior  court  abused  its  discretion  in  issuing   the
preliminary injunction.
          1.   The superior court did not abuse its discretion in
               issuing the preliminary injunction.
               
          We  have recently described what a plaintiff must  show
to obtain a preliminary injunction:
          The  showing required to obtain a preliminary
          injunction  depends  on  the  nature  of  the
          threatened  injury.  If the  plaintiff  faces
          the  danger  of irreparable harm and  if  the
          opposing party is adequately protected,  then
          we  apply a balance of hardships approach  in
          which  the  plaintiff must raise serious  and
          substantial questions going to the merits  of
          the  case; that is, the issues raised  cannot
          be frivolous or obviously without merit.  If,
          however,  the plaintiffs threatened  harm  is
          less  than  irreparable or  if  the  opposing
          party cannot be adequately protected, then we
          demand   of   the  plaintiff  the  heightened
          standard  of  a  clear  showing  of  probable
          success on the merits.[13]
          
          The superior court found that Friends faced irreparable
harm,  that  the city was adequately protected, and that  Friends
demonstrated a substantial likelihood of success on the merits of
[its] claim.
               a.   The  issues  whether Friends was  faced  with
                    irreparable  harm and whether  the  city  was
                    adequately protected are moot.
                    
          Although  the city argues that the superior  court  did
not   make   adequate  findings  that  Friends  was  faced   with
irreparable harm,14 it does not contend that Friends was not faced
with  irreparable harm.  If we were reviewing the issuance  of  a
preliminary injunction in a pending case, and concluded that  the
findings  were inadequate, we would remand to the superior  court
for additional findings.15  But remanding for additional findings
in  this  case  would  be  a needless exercise,  given  that  the
ultimate  issue in this attorneys fees appeal is whether  Friends
was  the  prevailing  party.  The dispute that  resulted  in  the
injunction in this case is moot.  Because the city does not argue
that  Friends was not faced with irreparable harm, we decline  to
consider  whether  the superior court abused  its  discretion  in
finding the threat of irreparable harm here.

          The  superior  court  also found  that  [t]he  security
posted  by  [Friends] under the circumstances  is  sufficient  to
protect  the  city.  The city argues that it was  not  adequately
protected  and  that  the  superior courts  finding  was  clearly
erroneous.
          When  a  party requesting a preliminary injunction  has
shown  probable  success on the merits, a preliminary  injunction
may  be issued even if the injury from the preliminary injunction
may not be adequately indemnified by a bond.16  The superior court
found  that Friends had demonstrated a substantial likelihood  of
success  on  the merits.  Because the court thought it  was  more
likely  than not that Friends would prevail on the merits of  its
claim,  we interpret the courts finding of substantial likelihood
of  success on the merits as a finding of probable success on the
merits.17  If the superior court did not abuse its discretion  in
concluding that Friends had demonstrated probable success on  the
merits,  any  possible error in its finding  that  the  city  was
adequately  protected is harmless.  We therefore turn to  whether
Friends demonstrated probable success on the merits.
               b.    Friends demonstrated probable success on the
merits.
          There is no factual dispute on appeal that the city did
not  conduct  competitive bidding before  awarding  the  original
management  contract  to the club.  Whether Friends  demonstrated
probable  success  on the merits therefore  turns  on  the  legal
question  whether  the pre-amendment version of  KMC  7.15.050(5)
exempted  management of the center from KMC 7.15.040s competitive
bidding  requirement.   Before September  3,  2003  KMC  7.15.050
provided:  The  following  may  be purchased  without  giving  an
opportunity  for  competitive bidding:  .  .  .  (5)  Contractual
services   of   a  professional  nature,  such  as   engineering,
architectural, and medical services.
                    i.   The  superior court was not required  to
                         defer to the citys interpretation of the
                         pre-amendment     version     of     KMC
                         7.15.050(5).
                         
          The  city,  citing Laborers Local No. 942 v. Lampkin,18
contends  that  the reasonable basis test applies  to  the  citys
interpretation of its procurement code.  In Lampkin we held  that
a citys interpretation of its own procurement code will be upheld
if  there is a reasonable basis for the interpretation.19   Under
the  rational  basis  test, we will uphold a  governmental  units
decision  if  it is supported by the facts and has  a  reasonable
basis  in law, even if we may not agree with the [units] ultimate
determination.20  The city argues that because it had a reasonable
basis  to  conclude that the term professional services  included
management   of  the  center,  the  superior  court  abused   its
discretion by issuing the preliminary injunction.
          But we apply the reasonable basis standard of review to
a  municipalitys interpretation of its own ordinances  only  when
this interpretation implicates complex matters or the formulation
of fundamental policy.21
          Lampkin   concerned  a  Fairbanks  North  Star  Borough
requirement  that  the successful bidder for a school  renovation
project   enter  into  a  previously  negotiated  Project   Labor
Agreement  (PLA).22   We  noted  that  the  construction  project
unquestionably  presented special challenges, and  that  the  PLA
would facilitate necessary flexible scheduling and eliminate  the
potential for strikes or other labor difficulties.23  We held the
borough  had  a reasonable basis to conclude that the  PLA  would
allow  the  borough to satisfy its minimum needs, its procurement
codes   policy  of  maximum  practicable  competition,  and   the
procurement   codes   provisions   dealing   with   sole   source
procurement.24
          The  legal  question in this case is far less  complex,
involving only the meaning of services of a professional  nature.
Nor  is there any indication that defining that phrase implicates
the  formulation  of  fundamental policy.  We therefore  conclude
that   although   the  superior  court  held   that   the   citys
interpretation failed even the reasonable basis test,  the  court
could  have interpreted pre-amendment KMC 7.15.050(5)  using  its
independent  judgment.  Because we review de  novo  the  superior
courts   legal   determinations  in   issuing   the   preliminary
injunction,25   we  review  the  meaning  of  pre-amendment   KMC
7.15.050(5) using our independent judgment.  We then  review  for
abuse   of  discretion  the  superior  courts  determination   of
probability of success on the merits and its ultimate decision to
issue the preliminary injunction.
                    ii.  The  superior  court  did  not  err   in
                         holding  that services of a professional
                         nature  in the pre-amendment version  of
                         KMC    7.15.050(5)   did   not   include
                         management of the center.
                         
            The superior court relied on what it characterized as
          the clear language of the ordinance in determining that
management  of  the  center was not a service of  a  professional
nature.   The  city cites several cases from other  jurisdictions
holding  that  in  the  context  of  similar  procurement  codes,
management of various facilities was professional in nature.26  At
least some of these cases are easily distinguishable.27  Moreover,
numerous  cases from other jurisdictions hold that management  of
facilities is not professional in nature and requires competitive
bidding.28  Opinions from other jurisdictions interpreting similar
statutes can be persuasive,29 but we turn first to our own methods
of statutory  interpretation.
          Interpretation of a statute begins with its text.30  We
apply the same rules of interpretation to municipal ordinances.31
In  interpreting  statutes,  we  have  adopted  a  sliding  scale
approach,  under which [t]he plainer the statutory  language  is,
the  more convincing the evidence of contrary legislative purpose
or  intent must be.32  Blacks Law Dictionary defines professional
as  [a]  person  who  belongs to a learned  profession  or  whose
occupation  requires a high level of training and  proficiency.33
Websters  Third  International  Dictionary  provides  a   similar
definition.34  [S]ervices of a professional nature are  therefore
commonly understood to be services that are rendered by a  member
of  the  learned  professions or that require  a  high  level  of
training and proficiency.
          The   illustrative   clause    such   as   engineering,
architectural, and medical services  that follows services  of  a
professional   nature   provides   textual   support   for   this
interpretation.35  Pursuant to the doctrine of ejusdem generis, a
general   term,  when  followed  by  specific  terms,   will   be
interpreted  in  light  of the characteristics  of  the  specific
terms, absent clear indication to the contrary.36  Before its 2003
amendment,    KMC    7.15.050(5)   listed    only    engineering,
architectural, and medical services as examples of services of  a
professional  nature.   These  specific  examples   all   require
extensive education, training, and proficiency.  Most professions
encompassed  by  these  examples require licensing  in  Alaska.37
There  has  been  no  contention, much less  any  evidence,  that
successful  management  of the citys recreation  center  requires
education,  training, or proficiency equivalent to that  required
of engineers, architects, and providers of medical services.
          In  light  of  the  plain  meaning  of  services  of  a
professional  nature  and the specific examples  listed  in  pre-
amendment  KMC 7.15.050(5), we conclude that the phrase  services
of  a professional nature does not include facilities management.
We therefore agree with the superior court that management of the
center does not involve services of a professional nature as that
phrase  was used in pre-amendment KMC 7.15.050(5).  The  superior
court  therefore  did not abuse its discretion  in  finding  that
Friends had demonstrated probable success on the merits.
          2.    Friends  is the prevailing party even though  the
city  succeeded                in privatizing management  of  the
center.

          The  city  asserts that Friends is not  the  prevailing
          party because the city accomplished exactly what it set out to
accomplish  and what Friendss lawsuit sought to prevent   private
management of the center.  It argues that because Friends did not
achieve its goal, Friends is not the prevailing party.
          When  determining  prevailing  party  status,  we  have
consistently looked to whether the party successfully  prosecuted
or  defended the action and to whether the party prevailed on the
main  issue.38  Our determination of prevailing party status  has
therefore traditionally focused on the litigation itself.
          Furthermore,  the  purposes  of  the  public   interest
litigant  exception  to  Civil Rule 82  suggest  that  the  citys
political success in amending KMC 7.15.050(5) and entering into a
second  management contract with the club is not  an  appropriate
basis  for  concluding that Friends is not the prevailing  party.
We  award  prevailing public interest litigants  full  reasonable
attorneys fees to encourage plaintiffs to raise issues of  public
interest.39  This suggests that the focus of the prevailing party
determination  should  be  on  the  litigation,  rather  than  on
contemporaneous political or contractual developments.
          The  city  has not convinced us that a public  interest
litigant  that brings a meritorious claim against a  governmental
unit  and  obtains a preliminary injunction loses its  prevailing
party  status if, through the political process, the governmental
unit  later  moots  the lawsuit and accomplishes  its  challenged
goals.   Because Friends succeeded in obtaining the only judicial
relief  granted  in  this case before it  was  dismissed  without
objection  as  moot  following amendment of  the  ordinance,  the
superior  court  did  not abuse its discretion  in  finding  that
Friends was the prevailing party.40
     C.   No  Extraordinary  Circumstances  Justify  Apportioning
          this Attorneys Fees Award.
          
          Although  prevailing  public  interest  litigants   are
generally entitled to full reasonable attorneys fees, we held  in
Dansereau  v. Ulmer that attorneys fee awards may be  apportioned
for   prevailing  public  interest  litigants  when   exceptional
circumstances exist.41  We have suggested that raising  frivolous
issues  or  issues included only to inflate prospective attorneys
fee award may constitute exceptional circumstances.42
          The  city  argues that Friends abandoned three  of  the
claims  made in its complaint by failing to respond to the  citys
motion  for summary judgment on those claims.43  The city  claims
that  this abandonment, coupled with Friendss failure to  achieve
its  goal,  establishes  exceptional circumstances  that  warrant
apportionment of any attorneys fees awarded to Friends.
          But the city moved to dismiss the underlying litigation
as  moot  at the same time it moved for summary judgment  on  the
claims it characterizes as abandoned.  Friends very appropriately
recognized that the underlying litigation was moot and joined the
citys  motion to dismiss the case for mootness.  It was therefore
not  necessary to oppose the motion for summary judgment  on  the
merits as to those three claims.  Friendss decision not to oppose
summary   judgment  as  to  those  claims  therefore  cannot   be
characterized  as  an abandonment that might somehow  demonstrate
exceptional circumstances justifying apportionment of fees.  And,
as  we  stated  above,  Friends succeeded in  obtaining  judicial
relief.  The city cannot make this an exceptional case by mooting
it   through  the  political  process.   Because  no  exceptional
circumstances  exist,  the  superior  court  did  not  abuse  its
discretion in declining to apportion the attorneys fee award.44
IV.  CONCLUSION
          For the reasons discussed above, we AFFIRM the superior
courts judgment.

_______________________________
     1     Kenai  Municipal Code (KMC) 7.15.040(a)  requires  the
city,  before  awarding a contract for services, to solicit  bids
from  at  least three potential contractors, if possible,  and/or
publish  notice  of  the proposed [contract] in  a  newspaper  of
general  circulation  within the city.  KMC 7.15.040(f)  requires
the city to award the contract to the lowest responsible bidder.

          KMC   7.15.050  lists  exceptions  to  the  competitive
bidding  requirement  of  KMC  7.15.040.   When  the  city  first
contracted  with the club and Friends filed suit, KMC 7.15.050(5)
provided that [t]he following may be purchased without giving  an
opportunity  for  competitive bidding:  .  .  .  (5)  Contractual
services   of   a  professional  nature,  such  as   engineering,
architectural, and medical services.  We refer to this as the pre-
amendment  version of KMC 7.15.050(5).  While Friendss  suit  was
pending,  the  city  council amended KMC 7.15.050(5)  to  include
facilities management.  See infra note 4 and accompanying text.

     2     Friends also alleged that (1) the contract was illegal
because  the  club did not have an Alaska business  license;  (2)
notice  of  the  city  council meetings at  which  the  potential
contract  was discussed was inadequate, in violation  of  Alaskas
Open  Meetings Act (AS 44.62.310); (3) residents were not allowed
to participate or comment at a city council meeting, in violation
of the Open Meetings Act; and (4) the Kenai City Charter violates
the constitutional right to referendum by allowing for only a one-
month  signature-gathering period and by limiting  the  right  to
City  Council ordinances only, so that the contract with the club
could  not be voided by referendum.  The superior court  did  not
base  the  preliminary injunction on any  of  these  claims.   We
discuss  in Part III.C the citys contention that because  Friends
did  not  prevail on these claims, any attorneys fees awarded  to
Friends should be apportioned by issue.

     3     The  superior court later allowed the release of  city
funds  to  compensate the club for services rendered  before  the
preliminary injunction was issued.

     4    KMC 7.15.050 now reads:

          The following may be purchased without giving
          an opportunity for competitive bidding: . . .
          (5)   Professional  services.    Professional
          services  means  those advisory,  consulting,
          architectural,    management,    engineering,
          research or development services that involve
          the  exercise  of discretion and  independent
          judgment   together  with  an   advanced   or
          specialized knowledge, expertise or  training
          gained   by  formal  studies  or  experience.
          Examples of professional services include . .
          . facilities management . . . .
          
          We refer to this version of KMC 7.15.050(5) as the post-
amendment version.

     5    Fernandes v. Portwine, 56 P.3d 1, 5 (Alaska 2002).

     6    State, Div. of Elections v. Metcalfe, 110 P.3d 976, 978
(Alaska 2005).

     7     DeSalvo  v.  Bryant, 42 P.3d 525,  528  (Alaska  2002)
(quoting  Arbelovsky v. Ebasco Servs., Inc., 922  P.2d  225,  227
(Alaska 1996)).

     8     See  People ex rel. Gallo v. Acuna, 929 P.2d 596,  626
(Cal.  1997)  (Of  course, questions underlying  the  preliminary
injunction are reviewed under the appropriate standard of review.
Thus,  for  example  .  . . issues of pure  law  are  subject  to
independent review.).

     9    Dansereau v. Ulmer, 955 P.2d 916, 920 (Alaska 1998).

     10     Matanuska Elec. Assn, Inc. v. Rewire the Bd., 36 P.3d
685, 690 (Alaska 2001).

     11    Dansereau, 955 P.2d at 918.

          AS  09.60.010 was amended in 2003 to prohibit the award
of  full  reasonable attorneys fees to prevailing public interest
litigants   except   in  cases  concerning   the   establishment,
protection,  or  enforcement  of  a  constitutional  right.    AS
09.60.010(b), (c).  AS 09.60.010(b) applies to all civil  actions
and  appeals  filed  on  or  after the  Acts  effective  date  of
September 11, 2003.  Ch. 86,  4, SLA 2003.

          The  city has not argued that AS 09.60.010(b)  has  any
bearing  on the attorneys fee award in this case, and the parties
have  not  briefed  the  issue.  We express  no  view  as  to  AS
09.60.010(b)s   applicability  to  this  case,  but   note   that
legislative  history may inform the interpretation  of  the  term
appeal  in  ch.  86,   4,  SLA  2003.   See  Judiciary  Committee
Substitute  for House Bill (C.S.H.B. (Jud)) 145, 23rd  Leg.,  1st
Sess.  (2003);  House Judiciary Committee Minutes,  May  7,  2003
(testimony of Robert B. Briggs, staff attorney for the Disability
Law  Center  of  Alaska, Inc., commenting on an  April  21,  2003
letter   by   an   assistant  attorney  general  explaining   and
interpreting H.B. 145); see also AS 22.10.020(a) , (d).   To  the
extent  there is a contention that Friends is or is not  entitled
to full reasonable attorneys fees as a prevailing public interest
litigant,  the  parties will have an opportunity to  address  the
applicability of AS 09.60.010(b) in the context of a  motion  for
attorneys fees under Alaska Appellate Rule 508.

     12     See  Bruner v. Petersen, 944 P.2d 43, 47 n.4  (Alaska
1997)  (citing  LaMoureaux v. Totem Ocean Trailer Express,  Inc.,
651 P.2d 839, 840 n.1 (Alaska 1982)).

     13    State, Div. of Elections v. Metcalfe, 110 P.3d 976, 978
(Alaska 2005) (internal quotation marks and citations omitted).

     14    See Alaska R. Civ. P. 52(a) ([I]n granting or refusing
interlocutory injunctions the court shall similarly set forth the
findings of fact and conclusions of law constitute the grounds of
its  action.); Alaska R. Civ. P. 65(d) (Every order  granting  an
injunction  and  every  restraining order  shall  set  forth  the
reasons for its issuance; [and] shall be specific in terms . .  .
.).

     15     See  State, Dept of Fish & Game v. Pinnell, 461  P.2d
429, 432 & n.8 (Alaska 1969).

     16     N.  Kenai  Peninsula Rd. Maint. Serv. Area  v.  Kenai
Peninsula Borough, 850 P.2d 636, 639 (Alaska 1993).

     17    Likelihood is defined as probability and appearance of
probable  success.   Websters Third New International  Dictionary
1310 (1966).

     18    Laborers Local No. 942 v. Lampkin, 956 P.2d 422 (Alaska
1998).

     19    Id. at 435.

     20    Gunderson v. Univ. of Alaska, Fairbanks, 922 P.2d 229,
233  (Alaska 1996) (quoting Tesoro Alaska Petroleum Co. v.  Kenai
Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987)).

     21    Lampkin, 956 P.2d at 432 n.11.

     22    Id. at 427-28.

     23    Id. at 435.

     24    Id. at 432, 435-36.

     25     See People ex rel. Gallo v. Acuna, 929 P.2d 596,  626
(Cal. 1997).

     26    See Hurd v. Erie County, 34 A.D.2d 289, 292 (N.Y. App.
Div. 1970) (professional football stadium); City of Cleveland  v.
Laushe,  49 N.E.2d 207, 211 (Ohio App. 1943) (zoological garden);
Lieberman Org. v. City of Phila., 595 A.2d 638, 640-41 (Pa. 1990)
(homeless shelter).

     27    The facilities in Erie and Cleveland were considerably
larger  and  more  complex than the facility in Kenai,  and  they
required far more expertise to manage.

     28     See,  e.g., City of Inglewood-L.A. County Civic  Ctr.
Auth.  v. Superior Court of L.A. County, 103 Cal. Rptr. 689,  692
(Cal.  1972)  (rejecting  argument that management  contract  for
public   construction  project  is  analogous  to  contract   for
engineering  and architectural services); Glatstein  v.  City  of
Miami,  399  So.  2d  1005, 1009 (Fla. App. 1981)  (holding  that
contract  for  management  of theme  park  was  not  professional
service);  Communicare, Inc. v. Woody County Bd. of  Commrs,  829
N.E.2d  706,  712-15 (Ohio App. 2005) (holding that contract  for
management  services  for  operation of   nursing  home  was  not
professional  service enumerated by statute).   These  facilities
seem  more  analogous to the Kenai facility than those  found  in
Erie, Cleveland, or Philadelphia.

     29     See  Nicholson  v. Sorensen, 517 P.2d  766,  770  n.9
(Alaska  1973)  ([A]  construction of a similar  statute  by  the
highest  court  of another state rendered after adoption  of  the
statute by Alaska may be persuasive, but a statute is presumed to
have  been  adopted with the interpretation that had been  placed
upon it prior to its Alaska enactment by the highest court of the
state from which it was taken.).  The city does not suggest  that
the  pre-amendment version of KMC 7.15.050(5) was taken from  any
of  the statutes interpreted in the cases cited in supra note 26.
We therefore accord them no extraordinary persuasive force.

     30     Bartley v. State, Dept of Admin., Teachers Ret.  Bd.,
110 P.3d 1254, 1258 (Alaska 2005).

     31    See Marlow v. Municipality of Anchorage, 889 P.2d 599,
602   (Alaska   1995)   (applying  sliding  scale   approach   to
interpretation of ordinance).

     32     Govt Employees Ins. Co. v. Graham-Gonzalez, 107  P.3d
279, 284 (Alaska 2005).

     33     Blacks  Law  Dictionary  1226  (7th  ed.  1999).   AS
01.10.040(a) requires that

          [w]ords   and  phrases  shall  be   construed
          according   to  the  rules  of  grammar   and
          according to their common and approved usage.
          Technical  words and phrases and those  which
          have  acquired  a  peculiar  and  appropriate
          meaning, whether by legislative definition or
          otherwise,  shall be construed  according  to
          the peculiar and appropriate meaning.
          
See also Graham-Gonzalez, 107 P.3d at 284 (In assessing statutory
language,  unless  words  have acquired a  peculiar  meaning,  by
virtue of statutory definition or judicial construction, they are
to be construed in accordance with their common usage.) (internal
quotations omitted).

          The  city argues that it has interpreted services of  a
professional nature to include facilities management in the past.
But the city does not point to a peculiar legislative definition.
Moreover,  we  do  not  regard  two other  facilities  management
contracts  that  the  city  claims it  made  without  competitive
bidding as imbuing the term professional with a peculiar meaning.
We therefore look to the terms common and approved usage.

     34    Websters Third New International Dictionary 1811 (1966)
(defining  professional, when used as an adjective, as describing
one engaged in one of the learned professions or in an occupation
requiring a high level of training and proficiency).

     35    The term such means [o]f this or that kind.  Blacks Law
Dictionary  1446  (7th ed. 1999).  Under Alaska  law,  words  and
phrases  in  statutes generally are to be construed according  to
their  common and approved usage.  Human Res. Co. v. Alaska Commn
on  Post  Secondary  Educ., State of Alaska, 946  P.2d  441,  444
(Alaska  1997).   The  use  of   such  as  in  pre-amendment  KMC
7.15.050(5)  therefore indicates that the list of services  of  a
professional  nature  is  meant to be  illustrative  rather  than
exclusive.

     36     West  v. Umialik Ins. Co., 8 P.3d 1135, 1141  (Alaska
2000)  (citing  State Farm Fire & Cas. Co. v.  Bongen,  925  P.2d
1042,  1046 (Alaska 1996)); see also Cable v. Shefchik, 985  P.2d
474,  480  (Alaska  1999)  (explaining  that  under  doctrine  of
ejusdem  generis,  a general term, like tool,  when  modified  by
specific terms, like drills, saws and other hand tools,  will  be
interpreted  in  light of those specific terms,  absent  a  clear
indication  to  the contrary ) (quoting Alaska Construction  Code
05.090(c)(3)(A); Bongen, 925 P.2d at 1046).

     37    Cf. AS 08.48.171 (requiring registration of architects
and engineers); AS 08.64.170 (requiring registration for practice
of  medicine, podiatry, and osteopathy); AS 08.68.160  (requiring
registration of nurses).

     38     Matanuska Elec. Assn, Inc. v. Rewire the Bd., 36 P.3d
685, 690 (Alaska 2001); Meidinger v. Koniag, Inc., 31 P.3d 77, 88
(Alaska 2001); De Witt v. Liberty Leasing Co. of Alaska, 499 P.2d
599,  601  (Alaska 1972); Buza v. Columbia Lumber Co.,  395  P.2d
511, 514 (Alaska 1964).

     39     Southeast Alaska Conservation Council, Inc. v. State,
665 P.2d 544, 553 (Alaska 1983) (quoting Anchorage v. McCabe, 586
P.2d 986, 990 (Alaska 1977)).

     40    See Halloran v. State, Div. of Elections, 115 P.3d 547,
554  (Alaska  2005) (holding that obtaining temporary restraining
order  may be basis for finding plaintiff to be prevailing  party
when   the   restraining  order  was  only  relief   granted   in
litigation).

     41    Dansereau v. Ulmer, 955 P.2d 916, 918-20 (Alaska 1998).

     42    Id. at 920.

     43     As  stated  above,  the  superior  court  issued  the
preliminary  injunction based on Friendss  claim  that  the  city
violated  its  competitive  bidding requirement.   The  remaining
claims  are  enumerated in supra note 2.  The  city  argues  that
[o]ne  of  them  was dismissed by the plaintiffs and  three  were
essentially abandoned.

     44     At  oral argument on appeal, the city disclaimed  any
contention that any award of attorneys fees to Friends should  be
apportioned by litigation stage.  It is therefore unnecessary  to
consider  whether  apportionment on that basis  would  be  proper
here.   Cf.  Halloran,  115 P.3d at 554-55 (instructing  superior
court  on remand to consider apportionment of attorneys fee award
by  stage  of  litigation  if it determined  that  plaintiff  was
prevailing party); Hickel v. Southeast Conference, 868 P.2d  919,
926 (Alaska 1994) (discussing propriety of apportioning attorneys
fee award by litigation stage).

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